Democracy Watch has asked for review after B.C.'s conflict-of-interest commissioner cleared Premier Christy Clark of any wrongdoing, despite the fact her rivals were satisfied with the rulings of Paul Fraser.DARRYL DYCK / THE CANADIAN PRESS

VICTORIA —Conflict-of-Interest Commissioner Paul Fraser weighed in this week on the broader implications of the court challenge to his rulings in favour of Premier Christy Clark.

Fraser told the legislature finance committee that the application from Democracy Watch for a judicial review of his decisions could affect all independent officers of the house, here and elsewhere.

“This is an important application simply because if — in fact — the court has the jurisdiction to judicially review our decision, then, in my view, that impacts on each and every one of the decisions that are made by all of the officers of the legislature in B.C. and, I’m bound to say, all of the equivalent officers around the country.”

Meaning the B.C. auditor-general, ombudsperson, privacy commissioner, child and youth representative, chief electoral officer, merit commissioner as well as their counterparts in other Canadian jurisdictions.

“So it’s a matter of considerable interest,” Fraser continued, “and will cause us to have to donate some of our resources to dealing with it.”

All by way of putting the finance committee on notice that he might be back for additional funding if the Democracy Watch bid for judicial review leads to a full-blown proceeding in B.C. Supreme Court.

“We don’t have a slush fund in the budget,” Fraser reminded the MLAs. “There is no contingency fund that we can draw quietly upon … If we are taken to court, as we have been quite recently, then the (line item) which deals with professional services, contains the amount we have in order to be properly represented.”

His point being that the roughly $750,000 annual budget approved by the legislature for his office includes a bare bones $25,000 for professional services, covering retention of outside legal help.

Fraser is himself a lawyer and handles the routine legal work associated with his office. But given the implications of the challenge brought by Democracy Watch, he has already retained John Hunter, a veteran legal counsel based in Vancouver.

The Ottawa-based advocacy group asks the court to overturn Fraser’s findings earlier this year that Premier Clark was not in a conflict over fronting big-ticket fundraisers for the B.C. Liberal party, nor for the $50,000 a year salary top-up she receives from party funds.

The two-fold challenge argues that Fraser wrongly interpreted the province’s conflict of interest legislation and his handling of the case was tainted because his son, John Paul, is a deputy minister in the Clark government.

“An informed person, viewing the matter in a realistic and practical manner, would conclude that someone in the position of Paul Fraser would more likely than not make an unfair decision,” reads the petition. “It is more likely than not that commissioner Fraser has a reasonable apprehension of bias which precludes him from making a fair decision.”

The younger Fraser has occupied a senior post in the public service since halfway through his father’s first term as conflict commissioner. The connection did not preclude the Opposition New Democrats from joining the government in supporting the elder Fraser for a second term, knowing he might well have to pass judgment on the premier and her ministers.

“We were impressed by Mr. Fraser’s continuing commitment to his statutory responsibilities which he has performed diligently during his first term,” said the unanimous recommendation from the all-party committee of selection on the eve of the last election. “His sound judgment and advice have greatly assisted members in fulfilling their legislative duties.”

Nor did New Democrats object when Fraser (who’d recused himself in an earlier case involving his son) fielded their complaints on the fundraising file. “Any concerns I have about your son’s role do not rise to the level that I would request that you consider that you recuse yourself from this matter,” wrote the complainant MLA, David Eby.

The all-party legislative support for the conflict commissioner sets up what is likely to be the preliminary legal skirmish in this case, namely whether there is any basis for the judicial review of Fraser’s decisions.

There is little precedent for the courts being asked to second-guess independent officers of the legislature and next to none for judicial intervention to overturn one of their decisions.

Democracy Watch went this route back in 2008, seeking to reverse a finding by the federal conflict-of-interest commissioner in favour of then-Prime Minister Stephen Harper and Justice Minister Robert Nicholson.

A three-member panel of the Federal Court of appeal threw out the application on grounds that the conflict commissioner’s decisions were “not judicially reviewable by this court.”

There was also a case in the Northwest Territories where a member of the legislature sought to overturn a finding of guilt from the territorial conflict-of-interest commissioner on grounds he’d been denied natural justice.

He, too, got nowhere in the courts.

“The powers exercised by the conflict-of-interest commissioner are exercised within the ambit of privilege enjoyed by the Legislative Assembly,” ruled Mr. Justice J.Z. Vertes. “This court has no jurisdiction to entertain a judicial review application.”

Given how circumstances can alter cases, a B.C. court might reach a different conclusion. But before putting Fraser on trial for ruling in favour of Premier Clark, Democracy Watch will first have to persuade a judge that the conflict commissioner’s decisions are reviewable by the courts on any grounds.

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